Citation NR: 9713499
Decision Date: 04/18/97 Archive Date: 04/29/97
DOCKET NO. 90-05 074 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUES
1. Entitlement to service connection for a back disorder,
secondary to the veteran’s service connected left leg
disorders.
2. Entitlement to an increased (compensable) evaluation for
nephrolithiasis.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Michael E. Kilcoyne, Counsel
INTRODUCTION
The veteran had active military service from September 1950
to May 1953.
The issue concerning service connection arises from a
December 1992 decision entered by the aforementioned regional
office (RO), with which the veteran disagreed in February
1993. A statement of the case was issued in April 1993, and
a substantive appeal was received in May 1993. A hearing was
held before the Board of Veterans’ Appeals (Board) in October
1993, in Washington, DC before I. S. Sherman, a member of the
Board, who will be rendering the final determination in this
claim. Ms. Sherman was designated by the Chairman to conduct
that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West Supp.
1996). In April 1994, the Board remanded the case to the RO
for additional development, and in November 1994, a
supplemental statement of the case was issued. Thereafter,
the case was returned to the Board, and in March 1996, the
Board remanded the matter once again. Thereafter,
supplemental statements of the case were issued in July 1996
and November 1996, after which the case was returned to the
Board.
With respect to the claim for an increased rating for
nephrolithiasis, service connection for that disability was
granted in June 1996, but it was assigned a noncompensable
disability evaluation. The veteran was apparently informed
of this decision in the July 1996 supplemental statement of
the case, and later that month, he expressed his disagreement
with the evaluation that had been assigned. Another
supplemental statement of the case was issued in November
1996, and a letter received from the veteran later that month
is construed as a substantive appeal.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he has a back disability that was
caused by his service connected leg disorder. Furthermore,
he maintains that he suffers from attacks of colic, and
although they have not recently required hospitalization, he
contends that a compensable evaluation for his
nephrolithiasis is warranted.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence does not warrant an increased rating for
nephrolithiasis, but that service connection for a low back
disorder secondary to the veteran’s service connected leg
disorder is warranted to the extent that the veteran’s left
leg disorder aggravates the veteran’s low back disorder.
FINDINGS OF FACT
1. All evidence necessary for an equitable disposition of
the veteran's appeal has been obtained by the RO.
2. The medical evidence does not establish that the veteran
has a low back disorder that may be considered secondary to
his service connected leg disorder, but his low back disorder
is shown to be aggravated by the veteran’s service connected
leg disability.
3. The veteran’s nephrolithiasis is not shown to be
productive of occasional attacks of colic.
CONCLUSIONS OF LAW
1. Service connection for the extent to which the veteran’s
low back disorder is aggravated by his service connected left
leg disorder is warranted. 38 U.S.C.A. § 1110, 5107 West
1991); 38 C.F.R. § 3.310(1996).
2. The criteria for awarding a compensable evaluation for
nephrolithiasis have not been met. 38 U.S.C.A. § 1155, 5107
(West 1991); 38 C.F.R. Part 4 including §§ 4.1, 4.2, 4.10,
4.31, Diagnostic Codes 7508, 7509 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Service Connection
At the outset, the Board finds that the appellant's claim for
service connection for a back disorder is well grounded
within the meaning of 38 U.S.C.A. § 5107(a) (West 1991).
That is, the Board finds that he has presented a claim which
is plausible. The Board is also satisfied that all relevant
facts have been properly developed, and that the VA has
fulfilled its duty to assist the appellant as mandated by 38
U.S.C.A. § 5107 (West 1991). In this regard, the Board
observes that the available records the veteran has
identified as supporting his claim have been obtained, and he
has been examined on several occasions for VA purposes in
connection with this claim.
Under applicable criteria, service connection may be granted
for disability resulting from disease or injury which was
incurred in or aggravated by service. 38 U.S.C.A. § 1110.
Furthermore, disability which is proximately due to or the
result of a service connected disease or injury shall be
service connected. 38 C.F.R. § 3.310. In addition to
granting service connection for a disability that is
proximately due to or the result of a service connected
disorder, the United States Court of Veterans Appeals (Court)
held that service connection may also be granted for any
disability which is being aggravated by a service connected
disability. (In such case, service connection is granted for
the degree of disability over and above the degree of
disability prior to the aggravation.) Allen v. Brown, 7
Vet.App. 439 (1995), 38 C.F.R. § 3.322.
Initially, the Board observes that in pertinent part, the
veteran is service connected for one inch shortening of the
left lower extremity with crepitation in the left knee rated
10 percent disabling, and muscle injury left anterior thigh
group that is also rated 10 percent disabling. Furthermore,
although the veteran’s claims file is rather voluminous,
there are relatively few pieces of medical evidence that bear
directly on the question of whether the veteran has a back
disability that is proximately due to, or the result of his
service connected leg disorder, or is aggravated thereby.
The earliest relevant evidence is a January 1989 statement
from a private chiropractor in which it was reported that the
veteran first consulted him in 1963, and was seen at regular
intervals through 1987. At the first consultation, it was
recorded that the veteran was complaining of acute pain in
the lower back extending down the right leg. Physical
examination reportedly revealed acute muscle spasm in the
lumbar spinal musculature with restriction in flexion,
rotation, and extension. X-rays reportedly showed a
vertebral subluxation of the 5th lumbar vertebrae and a
lumbar scoliosis. As to the relationship between the
veteran’s left leg disorder, and the veteran’s back
disability, the chiropractor stated the following:
The shortening of the left leg caused a pelvic tilt
with associated lumbar muscle spasms. The left leg
was shortened by a compound fracture of the left
femur caused by an injury suffered by him while he
was on active duty in the U. S. Army Signal Corp in
June 1952. This shortening of the left leg caused
by the above injury (fracture) in my opinion is the
main contributory cause of the lumbar condition.
This condition causes pressure at the
intervertebral foramina on the sciatic nerve roots
which cause pain and muscle spasm in the lumbar
region and extending down the right leg....
The second piece of evidence is a January 1989 statement from
a private physician who has since passed away, and whose
records were reported by the veteran as unavailable. This
physician reported in his statement, that he had treated the
veteran since 1953. With respect to the veteran’s back, the
physician wrote the following:
The original fracture produced a shortening of his
left leg with a concomitant pelvic tilt and lumbar
scoliosis. In the middle 1950’s he developed a
back problem and sciatica. X-rays some years later
also disclosed the development of a
spondylolisthesis and it is probable that these
conditions resulted from the original fracture with
the concomitant shortened leg....
The patient continues to suffer
from...spondylolisthesis with a sciatic nerve pain
and it is my medical opinion that all these
conditions are the direct result of the comminuted
compound fracture of the left femur with nerve and
muscle damage that occurred while he was in active
service in 1952....
In December 1989, the veteran underwent an examination for VA
purposes, at which time he complained of back pain. The
examination itself, however, revealed that the spine was
straight and nontender. Furthermore, there was no evidence
of paraspinal muscle spasm, no point tenderness along the
course of the thoracolumbosacral spine and the sacroiliac
joints were nontender. Although the examiner did not review
the x-rays taken in connection with this examination, (which
failure prompted one of the Board’s remands), the examiner
opined that the veteran’s low back pain was “probably
secondary to a shortened left lower extremity, secondary to a
open femur fracture.” (The x-rays that were taken revealed
prominent degenerative change at the L5-S1 level with
narrowing of the disc space and formation of osteophytes,
together with mild degenerative changes at the upper lumbar
levels.)
As set forth above, since it could not be determined whether
the physician who conducted the December 1989 VA examination
ever considered the x-rays taken in connection with that
examination, and as he did not enter a complete diagnosis
following the examination, the Board requested another
examination in its April 1994 Remand. The requested
examination was subsequently conducted in May 1994. The
report from this examination revealed that there was mild
tenderness in the lower lumbar area, but no paraspinal
tenderness, or signs of fixed deformity. X-rays taken in May
1994, were interpreted as revealing mild anterior osteophytes
along the lumbar spine and minimal disc space loss at L4-5,
with some eburnation of the adjacent endplates. It was
specifically noted, however, that no other areas of
abnormality were seen. The pertinent diagnosis was
“spondylosis lumbar spine.” In addition, the examiner wrote,
“I do not feel that a shortened extremity can cause
spondylolisthesis and there is no literature to support this.
However a shortened extremity can cause back pain but this is
inconsistent.”
Since the physician who examined the veteran in May 1994, did
not comment on whether the disability he diagnosed the
veteran to have, “spondylosis,” was a result of the veteran’s
service connected leg disorders, the Board requested in its
March 1996 Remand, that the veteran be examined again. This
was accomplished in April 1996. The report of this
examination revealed that the veteran was considered “well
compensated with the center of the back of the head over the
buttock cleft and the center of the chin over the center of
the umbilicus. A review of x-rays taken in 1994, were
interpreted as showing spondylosis of L5 without
spondylolisthesis, or forward slippage of any of the lumbar
vertebral bodies upon one another or upon S1. There was,
however, diffuse arthrosis of the facets, worsening in
severity as viewing passed from L1 down to L5, S1. The
diagnostic impression was as follows:
Low back pain in a 67 - year - old male status post
a closed left femur fracture with approximately 3
cm shortening. There is no medical way to
determine whether or not this patient’s back
disability is related to his left lower extremity
disability. The patient has two separate problems
including diffuse facet arthritis with spondylosis
of L5 and leg length discrepancy with the left
thigh shorter than the right thigh.
To summarize this evidence, there is a chiropractor who has
stated that between 1963 and 1987, the veteran had muscle
spasm in the lumbar spinal musculature, vertebral subluxation
of the 5th lumbar vertebrae, and a lumbar scoliosis, which he
attributed to the veteran’s service connected disability.
There is also a private physician who as of 1989, concluded
that the veteran had spondylolisthesis with a sciatic nerve
pain that was attributable to the veteran’s service connected
leg disorder. There is a VA physician who in December 1989,
found that the veteran’s low back pain was “probably
secondary” to the veteran’s service connected leg disability.
There is another VA physician who in May 1994, diagnosed the
veteran to have “spondylosis lumbar spine,” but opined that
while the veteran’s service connected leg disability could
cause back pain, it could not cause spondylolisthesis.
Finally, there is a VA physician who concluded that the
veteran has two separate problems. These are diffuse facet
arthritis with spondylosis, and leg length discrepancy. This
physician, however, opined that it could not be medically
determined if the veteran’s back disability was related to
his left lower extremity disability.
With respect to the chiropractor’s opinion, the Board notes
that a chiropractor does not have the same rigorous medical
training as that of a physician, and for that reason alone,
an opinion by a physician would carry greater weight than
that of a chiropractor. In this case, the evidence does not
show that any physician, including the veteran’s private
physician, diagnosed the veteran to have subluxation, or that
the veteran has received any treatment for subluxation or
scoliosis since he was seen by this chiropractor. Under
these circumstances, the chiropractor’s opinion to the effect
that the veteran’s service connected left leg disorder caused
a number of disabilities that no other record shows the
veteran to have, carries very little probative weight.
The opinion by the veteran’s private physician, while
purportedly made with reference to the records of this
physician, is not supported by any of the records obtained in
the succeeding 8 years, or those associated with the claims
file covering the preceding 35 years. The veteran’s private
physician opined that the veteran had spondylolisthesis which
he attributed to the veteran’s service connected disability.
None of the actual x-ray reports that have been associated
with the claims file, however, including those dated in 1989
and 1994, reflect a finding of spondylolisthesis. Although a
July 1996 x-ray revealed that “there may be some
spondylolisthesis,” this was a tentative diagnosis at best,
and according to the reporting radiologist, would “be better
evaluated on a lumbar spine series.” As this is the only x-
ray report of record that even suggests the presence of
spondylolisthesis, and it is dated many years after the
opinion by the veteran’s private physician, the probative
value of this opinion is considerably diminished, since it
relates a disability whose very presence is questionable, to
a service connected disability.
The VA physician opinions, on the other hand, are known to
have been based on a review of all the available records in
the veteran’s C-file, which span the years since service.
Moreover, the findings of these physicians are consistent
with the clinical records and diagnostic tests performed, as
well as with each other. Significantly, however, they do not
conclude that the veteran’s current back disorder was caused
or aggravated by the veteran’s service connected left leg
disabilities. One found that it was not medically possible
to determine whether the veteran’s low back disorder was
related to the veteran’s left lower extremity disability, and
the other simply did not address whether the disability the
veteran had, was related to the veteran’s left leg disorder.
Thus, the Board is essentially left with a chiropractor’s
opinion that relates disabilities that no other medical
professional has found, to the veteran’s service connected
disability; a private physician who believes the veteran’s
leg disability caused a disability not demonstrated to exist
by any contemporaneous record, and only suggested on recent
diagnostic tests; and VA physician’s who have either failed
to render an opinion as to the cause of the veteran’s current
back disability, or have concluded that there is no medical
way to determine if the veteran’s back disability is related
to his left lower extremity disability. On such a record,
the Board can find no reasonable basis upon which to conclude
that the veteran’s current back disability was proximately
due to, or the result of his service connected left leg
disorder.
The record does show, however, that almost all of those
medical professionals who have examined the veteran and
addressed the question of the relationship between his
service connected leg disorder, and his back disorder, have
concluded that the veteran’s leg disability has caused the
veteran to have back pain. This may reasonably be concluded
that the veteran’s leg disability is aggravating his back
disability. As the Court has held that in addition to
granting service connection for a disability that is
proximately due to or the result of a service connected
disorder, service connection may also be granted for any
disability which is being aggravated by a service connected
disability, the Board finds that to the extent to which the
veteran’s back disability is aggravated by his service
connected leg disability, service connection in this case is
warranted.
Increased Rating
The Board finds that the claim for an increased rating for
nephrolithiasis is well grounded within the meaning of
38 U.S.C.A. § 5107. In the context of a claim for an
increased evaluation of a condition adjudicated service
connected, an assertion by a claimant that the condition has
worsened is sufficient to state a plausible, well-grounded
claim. Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992).
The Board further finds that the VA has met its duty to
assist in developing the facts pertinent to the veteran’s
claim under 38 U.S.C.A. § 5107 as the records of any claimed
treatment for this disability have been associated with the
claims file, and the veteran has undergone appropriate
examination.
A review of the record reflects that the veteran was awarded
service connection for nephrolithiasis in a June 1996 rating
action, and assigned a noncompensable disability evaluation.
This was accomplished after the Board awarded service
connection for a chronic genitourinary disorder, to include
chronic prostatitis, chronic epididymitis and ureteral
calculus.
A review of the medical records does not reveal any findings
of nephrolithiasis or associated colic complaints since the
1970’s. The report of the examination conducted for VA
purposes in 1992, revealed that the veteran had no abdominal
pain complaints, and concluded with only a “history of
ureteral calculus.” Subsequently dated outpatient and
inpatient treatment records do show complaints and treatment
for prostatitis, but there are none that reflect the presence
of nephrolithiasis. Diagnostic studies undertaken in July
1996 after the veteran complained of right flank pain
revealed that no calcific foci were noted over the expected
location of kidneys, ureters or urinary bladder. While the
physician noted that an excretory urogram would be helpful to
determine the presence of a stone, we note that such an exam
at the present time would not confirm the presence of a stone
in July 1996.
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
Separate diagnostic codes identify the various disabilities.
In addition, the VA has a duty to acknowledge and consider
all regulations which are potentially applicable through the
assertions and issues raised in the record, and to explain
the reasons and bases for its conclusions. These regulations
include, but are not limited to 38 C.F.R. § § 4.1 and 4.2.
Also, 38 C.F.R. § 4.10 provides that in cases of functional
impairment, evaluations must be based upon lack of usefulness
of the affected part or systems, and medical examiners should
furnish, in addition to the etiological, anatomical,
pathological, laboratory and prognostic data required for
ordinary medical classification, a full description of the
effects of the disability upon the person's ordinary
activity. Schafrath v. Derwinski, 1 Vet.App. 589 (1991).
Nephrolithiasis is evaluated under the provisions of
38 C.F.R. Diagnostic Code 7508. Under this code, it is
directed that nephrolithiasis be rated as hydronephrosis,
except for recurrent stone formation requiring diet therapy,
drug therapy or invasive or non-invasive procedures more than
two times per year. The record does not reflect the presence
of any of the foregoing. In this regard, the veteran appears
to be taking Trimethoprim daily; but there is no evidence
that he has been prescribed medication to prevent stone
formation. Trimethoprim is defined as an antibacterial.
DORLAND’S ILLUSTRATED MEDICAL DICTIONARY, 1746 (27th ed.
1994).
Accordingly, consideration will be given to the criteria
contemplated for the evaluation of hydronephrosis. This
disability is evaluated under the provisions of Diagnostic
Code 7509. Under this code, a 10 percent rating is warranted
when there is only an occasional attack of colic, not
infected and not requiring catheter drainage. Although there
are no provision under this code for a noncompensable rating,
in every instance where the schedule does not provide a zero
percent evaluation for a diagnostic code, a zero percent
evaluation shall be assigned when the requirements for a
compensable evaluation are not met. 38 C.F.R. § 4.31.
As set forth above, the record in this case does not reflect
any findings or treatment for nephrolithiasis for many years,
and no associated attacks of colic. Although the veteran was
examined for right flank pain in 1996, diagnostic studies
undertaken at that time did not confirm the presence of renal
calculi; and there is no other evidence confirming that the
pain the veteran experienced was due to an attack of colic at
that time. Although the veteran contends that he suffers
from attacks of colic due to nephrolithiasis, the Board notes
that contemporaneous treatment records reflects care for
prostatitis, rather than nephrolithiasis. This absence of
any corroborating medical evidence of complaints attributed
to nephrolithiasis is in the Board’s view, a more persuasive
and accurate picture of the extent to which nephrolithiasis
is disabling. Under these circumstances, the Board concludes
that the evidence fails to demonstrate manifestations of
nephrolithiasis that are sufficient to satisfy the criteria
for a compensable evaluation of that disability.
Accordingly, the veteran’s appeal in this regard is denied.
ORDER
To the extent that the veteran low back disorder is
aggravated by his service connected left leg disorder,
service connection for a low back disorder is granted.
An increased, compensable evaluation for nephrolithiasis is
denied.
I. S. SHERMAN
Member, Board of Veterans' Appeals
(CONTINUED ON NEXT PAGE)
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
- 2 -